The Government is promising an annual transparency report; but will it be
sufficiently comprehensive?

Emergency legislation is hardly ever a good idea outside wartime. Parliamentary scrutiny of our laws is poor enough as it is without rushing measures on to the Statute Book – especially when they expand the state’s powers to snoop on its citizens. Indeed, the new Bill to be fast-tracked in just a few days next week is itself a consequence of inadequate scrutiny.

In 2009, MPs adopted – by way of Statutory Instrument and limited debate – an EU directive requiring communications companies to retain phone, email and other similar data for a period of 12 months. Previously this information was held on a voluntary basis; the new law made it mandatory, though the Labour government abandoned plans for a state database on which to store it all in perpetuity. Earlier this year, the European Court of Justice ruled that the directive was an unlawful intrusion on personal privacy and struck it down. Now, the two Coalition parties and Labour have agreed to use primary legislation to revive it – but with safeguards that meet the ECJ’s objections.

The first question that arises, therefore, is why these weren’t inserted in the original law five years ago before it was effectively nodded through Parliament. Since this Bill is also about the interception, not just retention, of data, we need to know what the additional protections will be if we are to have any confidence in such powers. One requirement is greater transparency so that we know how and why this data is being used. Levels of openness around surveillance can be improved without compromising security.

The Government is promising an annual transparency report; but will it be sufficiently comprehensive? The devil will be in the detail. As Sir Anthony May, the Interception of Communications Commissioner, said in his annual report: “The unreliability and inadequacy of the statistical requirements is a significant problem which requires attention.” He also expressed “considerable sympathy” with those who are hazy about the details of snooping legislation.

David Cameron and Nick Clegg yesterday made a strong case for law enforcement agencies to be given access to communications traffic (as opposed to their content, which would need a warrant) in the investigation of terrorism and serious crime. The Prime Minister indicated that he favoured revisiting the option of wider snooping powers, to which Mr Clegg remains opposed. It is right that there should be a sunset clause in the Bill to end its powers in 2016. They would then have to be renewed by the next Parliament – and only after a wider debate about how we strike the balance between privacy and security.